Decision (EU) 2016/245 of the European Central BankShow full title

Article 30 Eligibility of candidates and tenderers

1. Subject to the following paragraphs, all natural and legal persons resident or established in the Union are eligible to participate in tender procedures. Tender procedures shall also be open on equal terms to all natural and legal persons resident or located in a country that has ratified the World Trade Organisation Agreement on Government Procurement, or has concluded with the Union a bilateral agreement on procurement, under the conditions laid down in these agreements. Suppliers from other countries may be admitted to participate at the ECB's sole discretion.

2. Temporary groupings of suppliers may participate in tender procedures under the conditions set out in the contract notice or the invitation to tender. The ECB may require temporary groupings to adopt a specific legal form if the contract is awarded to them, where this form is necessary for the proper performance of the contract. The participants in a temporary grouping shall be jointly and severally liable to perform the contract.

3. Candidates and tenderers shall submit only one application or tender. The ECB may exclude from participation any candidates or tenderers that submit a separate application or tender and which:

(a) are members of the same group of affiliated undertakings as another candidate or tenderer;

(b) are members of a temporary grouping together with other candidates or tenderers; or

(c) offer a substantial part of the contract to be awarded to another candidate or tenderer as subcontractor,

if there are indications that they have received information regarding the application or tender prepared by another candidate or tenderer or if the submission of multiple applications or tenders otherwise distorts free competition among candidates or tenderers.

4. The ECB shall exclude candidates or tenderers from participation if they, or their management bodies, have been convicted by a final judgment of participation in a criminal organisation, corruption, fraud, terrorist offences or financing, money laundering, child labour or human trafficking, as referred to in Article 57(1) of Directive 2014/24/EU, or of any other illegal activity detrimental to the financial interests of the Union, the ECB or the NCBs.

5. The ECB may exclude candidates or tenderers from participation at any time if:

(a) they are bankrupt, being wound up, subject to administration or in any similar situation provided for in national legislation or regulations;

(b) they are guilty of grave professional misconduct, which renders their integrity questionable;

(c) they are in breach of obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which they are established or where the contract is to be performed;

(d) they have shown significant or persistent deficiencies in the performance of another public contract, or with their obligations under environmental, social and labour law;

(e) they or their management, staff or agents are subject to a conflict of interest that cannot be remedied by less intrusive means;

(f) they are guilty of serious misrepresentation in supplying the information required by the ECB; or

(g) they contact other candidates or tenderers with the purpose of restraining competition, or try to unduly influence the decision-making process in the procurement procedure.

6. Candidates or tenderers shall certify that they are not in one of the situations listed in paragraphs 4 and 5 and provide the evidence specified in the contract notice or invitation to tender. If such circumstances arise in the course of the procedure the candidate or tenderer concerned shall inform the ECB thereof without undue delay. Candidates or tenderers may submit evidence to demonstrate their eligibility despite the existence of grounds for exclusion.

7. Where a candidate, or an undertaking related to a candidate, has been involved in the preparation of a procurement procedure, for example by advising on the procurement strategy or developing specifications, the ECB shall take appropriate measures to ensure fair competition and an equal level of information amongst all candidates. The ECB may exclude the candidate or undertaking from the procedure, if this is necessary for those purposes. Prior to exclusion, the candidate or undertaking shall be given the opportunity to prove that their previous involvement does not distort competition.

8. The ECB may exclude a candidate or tenderer that is in one of the situations described in paragraphs 4 and 5 from participation in any future tender procedure for a reasonable period of time. The ECB shall decide on the exclusion and determine the period of its duration applying the principle of proportionality, taking into account in particular: (a) the seriousness of the offence, conduct, breach or act of bankruptcy; (b) the time which has elapsed since the offence, conduct, breach or act of bankruptcy was committed or occurred; (c) the duration and any recurrence of the offence, conduct, breach or act of bankruptcy; (d) the intention or degree of negligence of the supplier concerned; and (e) the measures taken by the supplier to avoid similar offences, conduct, breaches or acts of bankruptcy in the future. The period of exclusion shall not exceed 10 years from the date notice thereof is delivered to the supplier. Prior to taking a decision to exclude a supplier, the ECB shall give the supplier an opportunity to express its views unless the facts justifying the exclusion are laid down in a final judgment. The ECB shall notify the supplier in writing of its decision and the main reasons for doing so.